1997 Developments in Connecticut Family Law
| Publication year | 2021 |
| Pages | 77 |
72 CBJ 77. 1997 Developments in Connecticut Family Law
While 1997 yielded several significant appellate family law decisions, (fn1) the development which is most likely to have the greatest impact on the practice of family law is the adoption of new family rules of practice by the judiciary. Also likely to have far-reaching significance is Connecticut's adoption of the Uniform Interstate Family Support Act.
The most noteworthy cases brought clarification to the area of postjudgment relocation of children, (fn2) a new direction in the area of child support modification, (fn3) conceffi about the nature and modifiability of life insurance, (fn4) and a case-by-case approach to issues relating to counsel appointed to represent children. (fn5)
The new family rules of court are mandatory reading for any practitioners who venture into family court. U.I.F.S.A. will modernize and streamline interstate child support and alimony cases. The Supreme and Appellate Court family law opinions continue to shape the way Connecticut's trial courts can and do decide cases.
Effective October 1, 1997, new Chapter 41B, Procedure in Family Matters, became part of the Connecticut Practice Book. The new family rules are found at Practice Book Sections 1200 through 1271. (fn6) In addition, some of the old civil rules were amended to better fit with the new family rules.
Family actions are no longer civil actions. (fn7) Only those rules contained in Chapter 41B, or expressly incorporated, (fn8) are applicable in family actions. While a detailed discussion of each of the new rules is outside the scope of this article, the following addresses those most likely to have the greatest impact.
The rules recognize an action for custody separate and apart from an action for dissolution or legal separation. (fn9) Thus, there is little room left to argue that Section 46b-61 does not authorize such an action because it is contained within Chapter 815j of the General Statutes, Dissolution of Marriage, Legal Separation and Annulment. (fn10)
Perhaps the most significant new rule is Section 1204, which provides for automatic orders incident to actions for dissolution, separation, annulment, custody, or visitation. (fn11)
The automatic orders must be included with the complaint. The automatic orders restrain the parties from: (1) transferring, disposing of, or encumbering property except in the usual course of business or for customary and usual household expenses or for reasonable attorneys fees; (fn12) (2) incurring unreasonable debts; (fn13) (3) permanently removing a minor child from the state of Connecticut; (4) removing the other party or the children from medical, hospital, and dental insurance; and (5) changing the beneficiaries of life insurance. The automatic orders require that the parties complete and exchange sworn financial statements within thirty days of the return date, (fn14) and maintain the existing life, automobile, and homeowners or renters insurance in full force and effect. If the parties are living together, the automatic orders preclude either party from denying the other use of their residence without court order. If the parties are separated and share a child, each is required to assist the child in having contact with the other, consistent with prior practice. If the parties share a child and one party vacates the family residence, that party is to notify the other, or the other's attorney, of an address where the vacating party may receive communications. (fn15) The parties are also to participate in parenting education within sixty days of the return date.
The automatic orders appear to be designed to have a salutory effect and to promote reasonable behavior during the dissolution process. They also appear designed to reduce the number of endente lite motions. The automatic orders, however, in the short-term may result in more litigation. That litigation may address the constitutionality of the automatic orders, (fn16) what "property" (fn17) is automatically subject to restraining order, what are "customary and usual household expenses," and what debts are "unreasonable."
The automatic orders fundamentally change the playing field. By attempting to freeze the status quo both in terms of the finances and the minor children, the new rules make the maxim that possession is nine-tenths of the law much less applicable to family cases. No longer can or should a party cavalierly squander assets or incur unreasonable debts. Similarly, relocation cases will no longer be won by a quick unilateral removal of the children to another jurisdiction. (fn18)
The automatic orders, however, place increased ethical burdens on the practitioner. He or she must tell the prospective client who wishes to bring an action that the orders will go into effect upon signing of the complaint. (fn19) Those orders will not restrain actions taken before the signing of the complaint. At what point does predivorce planning, i.e. advice about moving assets or children before commencing the action, become unethical conduct? (fn20)
The new family rules include all of the usual pleadings, i.e., the complaint, the motion to dismiss, the motion to strike, the answer, and the cross-complaint, except the request to revise. Thus, there is no obvious way to obtain "the deletion of any unnecessary, repetitious, scandalous, impertinent, immaterial or otherwise improper allegations in an adverse party's pleading." (fn21) Nor is there is a pleading designed to obtain a more complete statement of the factual or legal basis of a motion.
Practice Book Sections 1226, Motion for Exclusive Possession, 1227, Modification of Custody, Alimony or Support, and 1228, Motion for Contempt, all require that each motion set forth the basis upon which relief is sought. Each of those new rules presents new issues.
Section 1226 provides that a motion for exclusive possession need state "the grounds upon which the moving party seeks exclusive possession." The applicable statute, Section 46b-83 of the General Statutes, simply states that "[t]he court may also award exclusive use of the family home or any other dwelling unit which is available for use as a residence pendente lite to either of the parties as is just and equitable without regard to the respective interests of the parties in the property." Neither the statute nor appellate case law delineates the grounds for an award of exclusive possession. Would the failure of a motion to state its grounds render it subject to a motion to strike? (fn22)
Section 1227 requires that each motion for modification "state the specific factual and legal basis for the claimed modification." Would the failure of a motion to state its basis render it subject to a motion to strike? Would the moving party, at hearing, be limited to ' the factual and legal basis set forth in the motion or would he or she be permitted to adduce evidence of other bases? (fn23)
Section 1228 requires that motions for Contempt state the specific language and the date of the order upon which the motion is based, the specific acts alleged to constitute contempt, including the amount of arrears claimed to be due, and the claims for relief. Once again, would the failure of a motion for contempt to contain that information make it subject to a motion to strike? And would the moving party be limited to proof of the acts alleged?
It would appear that unless the courts conclude that a failure to comply with the applicable rule, i.e., Section 1226, 1227, or 1228, warrants striking a motion under Section 1217, those new rules will have little practical impact.
The new rules also require that each family motion must now state whether it is pendente lite or postjudgment. (fn24)
The rules governing the filing of sworn financial statements have been significantly revamped. Old Section 463 required that the moving party file a statement at the time a motion concerning alimony, support or custody is filed and that the opposing party file a statement at least three days before the date of hearing. Old Section 463 also required the filing of statements "within thirty days prior to the date of the decree."
Two new rules apply. Section 1204 (a) (3) requires that the parties exchange sworn financial statements within thirty days of the return day. Section 1231 requires that each party file such a statement at least five days before the hearing date of a motion concerning alimony, support, or counsel fees. Section 1231 also obligates each party to file such a statement at the time a dissolution, separation, annulment, or, where applicable, custody, or visitation action (fn25) is scheduled for hearing.
Thus, the new rules bring several improvements. The parties need to prepare and exchange financial statements relatively early in the case. The parties need not file those statements incident to motions where they are unnecessary. Nor do the parties have to delay the filing of motions early in the case because a financial statement has not been prepared as long as a financial statement is filed five days before hearing.
To the extent they require early exchange of information, the new rules are designed to promote settlement. For example, Section 1231(b)(1) requires that the parties prepare, file, and exchange written proposed orders at least ten days before any family master's session, alternative dispute resolution session, judicial pretrial; and limited or contested hearing.
The new rules seek to reduce discovery disputes. Section 1233 specifies "mandatory" disclosure and production which is to be provided by both parties if a party requests it. (fn26) The parties are not, however, limited to section 1233 and may pursue depositions, interrogatories, and other requests for the...
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